' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Safdar son of Sakhi Muhammad, Qureshi by caste, resident of Miana. Dhudhial Dakhli Dharyala Khaki, Gujjar Khan, appellant was involved in case F.I.R. No,554, dated 15-9-2007, offence under section 302, P.P.C., registered at Police Station Gujjar Khan, District Rawalpindi and was tried by Mr. Shafique Ahmed Chaudhry, learned Additional Sessions Judge, Gujjar Khan. Learned trial Court seized with the matter in terms of judgment dated 20-1-2010 convicted the appellant under section 302(b), P.P.C., and sentenced him to death with direction to pay Rs,2,00,000 as provided in terms of ,section 544-A, Cr.P.C. As compensation to be recovered as arrears of land revenue and in case of default in payment thereof, he was directed to undergo S.!. For six months.
2. Feeling aggrieved by the judgment of the learned trial Court, Muhammad Safdar appellant impugned the same by way of filing Criminal Appeal No,36 of 2010, whereas the learned trial Court forwarded Murder Reference No,8 of 2010 for confirmation of death sentence in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial Court, therefore, these are being disposed of through consolidated judgment.
3. Prosecution story as contained in the F.I.R. (Exh.PA) lodged on the complaint (Exh.PD) of Muhammad Zulfiqar son of Muhammad Akram, caste Ghakhar (P.W.7) is that he is resident of Kassowal. Mst. Naseem Akhtar, sister-in-law (saali of the complainant wife of Muhammad Safdar, due to strained relations with her husband, was residing in the house of Muhammad Rafaqat, resident of Dhoke Tali Dakhli along with her daughter. On 20-1-2010 husband of sister-in-law of the, complainant also reached there, who exchanged hot words with Mst. Naseem Akhtar over demanding the amount for selling agricultural land of her share. On receipt of information regarding quarrel the complainant along with Raja Nazeer Hussain son of Fazal Hussain, Subedar Muhammad Aslam son of Muhammad Akram, resident of Dhoke Tali proceeded to the house where Naseem Akhtar was living. At about 6:30 p.m., when they reached the courtyard of the house, in their eye-view, Muhammad Safdar son of Sakhi Muhammad, in order to commit her murder, assaulted with the hatchet; thereby inflicting numerous injuries on her person, who after sustaining injuries fell down and became unconscious and the complainant and others rescued her from the clutches of the accused.
' Motive behind the occurrence as portrayed in the crime report was dispute over selling the agricultural land. The complainant along with others took the injured and shifted her to Civil Hospital, Gujjar Khan, for medical treatment.
4. On receipt of information regarding the occurrence, Muhammad Khan, S.I (P.W.10) along with other police officials reached Civil Hospital, Gujjar Khan, where the complainant got recorded his statement and the same was reduced into writing as EXh.PD. The complainant thumb-marked the complaint in token of correctness of its contents, which was dispatched to the Police Station by the Investigating Officer through Imtiaz Ahmed 1268/C for registration of formal F.I.R. Due to her precarious condition, the injured was shifted to DHQ Hospital, Rawalpindi for medical arrangements. On 16-9-2007, on receipt of information by the complainant regarding death of Mst.
Naseem Akhtar, the Investigating Officer after adding offence under section 302, P.P.C., proceeded to THQ Hospital, Gujjar Khan, where he drafted application for post mortem examination (Exh.PK), prepared inquest report (Exh.PL) and handed over the dead body along with police papers to Imtiaz Ahmed constable for post mortem examination. Thereafter, the Investigating Officer proceeded to the place of occurrence from where he collected blood from the place where Mst.
Naseem Akhtar received injuries and secured vide recovery memo. (Exh.PH). He also prepared rough site plan of the place of occurrence (Exh.PM). After the post mortem examination last worn clothes of the deceased shalwar (P-1) and qameez (P-2) were handed over to the Investigating Officer, which he secured vide recovery memo Exh.PN and recorded the statements of the prosecution witnesses under section 161, Cr.P.C. On 22-9-2007 the Investigating Officer arrested Muhammad Safdar accused, who during the course of interrogation after making disclosure led to the recovery of blood-stained hatchet (P-3), which the Investigating Officer took into possession vide recovery memo Exh.PJ attested by the prosecution witnesses. The Investigating Officer recorded the statements of the prosecution witnesses and also prepared rough site plan of the place of recovery (Exh.PO). On reaching the Police Station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned.
5. Having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of Session enrouted through Illaqa Magistrate as provided in terms of section 190(2), Cr.P.C. The learned Additional Sessions Judge, vide order dated 15-12-2007 formally charge-sheeted the appellant to which he pleaded not guilty and claimed trial.
6. Prosecution in order to substantiate its case produced as many as ten (10) prosecution witnesses. Occular account in this case is coming from the statements of Zulfiqar (P.W.7) complainant and Muhammad Aslam (P.W.8). On presentation of complaint Pervaiz Iqbal, S.I.
(P.W.3) had chalked out formal F.I.R. (Exh.PA) while Mahmood Ahmed Shehzad draftsman (P.W.4) had prepared scaled site plan of the place of occurrence (Exh.PBB and Exh.PBB/1). Investigation in this case was conducted by Muhammad Khan, S.I. (P.W.10).
' Dr. Waqar Ahmed (P.W.8) had medically examined Mst. Naseem Akhter, whereas, Dr. Farhat Naveed, Woman Medical Officer (P.W.6) had conducted post mortem examination upon the dead body of deceased and found following injuries on her person:-- "(1) Stitched incised wound.8 x 1 cm on right side of forehand and temporal region, with bones stitched and fractures.
(2) Stitched lacerated wound 3 x 1. Cm over left side of bridge of nose.
(3) Stitched lacerated wound 3 x 1 cm on left side of the face below left eye.
(4) Stitched lacerated wound 8 x 3 cm on left side of face in front of left ear.
(5) Stitched incised wound 8 cm with stitched wound and fracture on left side of head.
(6) Stitched lacerated 3 x 1 cm on back of head.
(7) Stitched incised wound 4 x 1 cm with stitched wound over right temporal area.
(8) Stitched lacerated wound 9 x 1 cm on occipital area with fractured bone.
(9) Stitched lacerated wound on lower 1/3 of left forearm.
(10) Stitched incised wound 5 x 3 cm in forth web space of left hand.
(11) Stitched lacerated wound 2 x 3 cm on back of left hand.
(12) Stitched wound 8 x 6 cm on upper 1/3 of right fore-arm.
(13) Lacerated wound 3 x 1 cm right little finger.
(14) Area of swelling 10 x 6 cm with bruising over left shoulder.
(15) Area of swelling 6 x 4 cm with bruising over right shoulder."
' After conducting the postmortem examination, the doctor observed as under:- "After post mortem of dead body of Naseem Akhtar wife of Muhammad Safdar, 30 years female, I came to conclusion that death was homicidal (murder), which was caused by sharp heavy weapon axe (kulhara) by observed injuries within seven hours by her husband because of massive blood loss (hypovolemic shock and depression of respiratory centre) leading to death, wounds were fatal and ante-mortem to cause death. Time between injury and death seven hours. Time between death and post mortem was four hours."
' Statements of rest of the prosecution witnesses are formal in nature.
7. On 14-10-2008, learned DDPP gave up Aftab Hussain, P.W., being unnecessary, whereas, Raja Nazir Hussain, P.W., was also given up being unnecessary on 1-12-2009. Vide his separate statement recorded on 21-12-2009, learned DDPP after tendering in evidence the reports of Chemical Examiner (Exh.PQ and Exh.PR) and reports of Serologist (Exh.PS and Exh.PT) closed the prosecution evidence.
3. The appellant was examined under section 342, Cr.P.C, wherein he opted neither to lead defence evidence nor to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the P.Ws. Deposed against him, the appellant made the following deposition:-- "The complainant party was not happy on my marriage with deceased Naseem Akhtar. We were living happy life. We have good terms with each other and I had better income. Only Rafaqat (brother of the deceased) had visiting terms with us. Rafaqat was serving in Quetta. He was bachelor. His house was locked because he had no inmate to look after his house. He requested us to look after his house. We used to visit his house off and on for cleanliness etc. Rest of the complainant party was angry with deceased and me due to our marriage against will of Complainant party. Wife of the complainant is sister of deceased Naseem Akhtar. Once he came and requested for a loan. My wife asked me to take mercy and for better relation we should give them loan as they needed. On the request of my wife I gave them 80 thousands rupees as loan.
After that when I demanded my amount they were lingering on different pretexts. All the P.Ws. Are closely related to one another. They were not happy of my marriage with deceased that is why they deposed against me falsely. There was no dispute of land between me and my deceased wife Naseem Akhtar. Her father did not give any land share to deceased because he himself had no inheritance from his father. I donated land fora graveyard of my village Miana Dhudhial,
9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial Court, while evaluating the evidence available on record found the version of the prosecution proved beyond any shadow of doubt, resulting into conviction of the appellant in the above stated terms.
10. Learned counsel for the appellant while advancing his arguments submitted that the prosecution case lacks sufficient incriminating evidence to saddle any person with the charge of offence involving capital punishment, therefore, the learned trial Court was not justified in recording conviction against the appellant. Learned counsel forcefully argued that the story contained in the crime report does not seem plausible. Learned counsel emphasized that the presence of the complainant and P.W.8 at the place of occurrence at the relevant time could not be substantiated particularly when the Investigating Officer had recorded their statements under section 161, Cr.P.C. With a delay of one day. It was next argued that if statements of both the prosecution witnesses of occular account are scrutinized with care and caution, there are material contradictions going to the root of the case, hence the learned trial Court was not justified in believing their statements especially when their presence at the place of occurrence, at the most was, per chance. Learned counsel contended that in the complaint/F.I.R., number/locale/seat of injuries was not mentioned, therefore, the medical evidence, in no way, lends any support to the prosecution version. Learned counsel went on arguing that even the motive set forth in the crime report could not be substantiated. Involvement of the appellant, in the instant case, learned counsel urged, was for the only reason that complainant party did not like the marriage tie of the appellant with Mst. Naseem Akhtar deceased. In absence of any cogent and confidence-inspiring evidence, it was argued on behalf of the appellant, the learned trial Court fell in error in recording conviction/sentence and the same having been passed on flimsy grounds, is not sustainable in the eyes of law. Learned counsel, in the end, prayed for setting aside the impugned judgment.
11. Learned Law Officer, on the other hand, vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that the appellant is duly named in the crime report with specific role. Further submitted that the occurrence being broad-daylight and the parties having known to each other prior to the occurrence, no question of misidentification arises. It was further argued that the appellant, in a reckless manner, committed the murder of a woman folk, thereby inflicting as many as 15 injuries in order to ensure her death. Learned Law Officer next submitted that while appearing in the witness box, both the complainant, as well as, Muhammad Aslam (P.W.9) fully corroborated each other on salient features of the prosecution version. It was argued that the medical evidence is in line with the occular account, Learned Law Officer emphasized that after his arrest blood-stained hatchet was recovered from the appellant, which was sent to the office of Chemical Examiner/Serologist and its report in respect thereof is positive, which further substantiates the prosecution version. It was next contended by the learned Law Officer that as the prosecution adduced its version through leading straightforward and confidence inspiring evidence, therefore, the factum of motive and that's too being of trivial nature, cannot be given any weight especially when the appellant had failed to advance a single circumstance qua his false involvement in the instant case. Learned Law Officer further contended that during the course of investigation the appellant was found guilty and his name was placed in Column No,3 of the report prepared under section 173, Cr.P.C. In the end, it was prayed that as the prosecution proved its case against the appellant to the hilt, who had committed the murder of a young lady without her fault; thereby depriving her little girl from the most previous lap of the world, hence the learned trial Court was justified in passing conviction, which is in direct proportionate to the act done by the accused.
12. Arguments advanced pro and contra have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties.
13. Before proceeding further we are constrained to observe that no doubt it was a gruesome occurrence, in which a young female, aged 30 years was done to death in very reckless/horrible manner. The number of injuries at the person of deceased not only reflects mindset of the assailant rather it also depicts: that deceased had also shown resistance; whereby she received injuries at her hands, elbows and fingers, as well but the assailant remained adamant to take her life, however, at the same time without judicial scrutiny of the record no one can be saddled with the liability of the A occurrence.
14. In the instant case the accused named in the crime report is husband of the deceased and in order to prove its version prosecution adduced evidence primarily on three accounts viz. Occular account, medical evidence, recovery of hatchet and report of Chemical Examiner/Serologist in respect thereof, being positive.
' Admittedly bare reading of the crime report reveals that it was a daylight occurrence in which the appellant has been named as sole proprietor of the occurrence. There is also no denial to the fact that the complainant and Muhammad Aslam (P.W.9) were previously known to the accused, therefore, in this scenario it can safely be held that there was no chance of misidentification of assailant. While appearing in the witness box both Zulfiqar complainant (P.W.8) and Muhammad Aslam (P.W.9) fully established their receiving the information qua quarrel between the spouses and also substantiated their proceeding to the place of occurrence. The pen-picture of he occurrence adduced in the statements of the prosecution witnesses ocular account is straight forward and from their depositions it cannot be even smelled that they had not witnessed the occurrence or they had made dishonest statements. Both the prosecution witnesses corroborated each other on salient features of the occurrence with regard to inflicting injuries by the appellant upon the person of deceased and despite lengthy cross-examination, their testimony could not be shattered.
' As far as the argument of learned counsel for the appellant that the prosecution witnesses were introduced subsequently as their statements under section 161, Cr.P.C. Were recorded with a delay of one day after the occurrence is concerned, admittedly as the deceased had numerous severe injuries at the vital parts of her body, therefore, in order to save her life, the complainant and P.W.9 immediately shifted her to hospital as such this delay can be termed as trivial in nature creating no dent whatsoever on the testimony of ocular account, which even otherwise seems to be straightforward and confidence inspiring.
15. This Court is also conscious of the fact that both the complainant and Muhammad Aslam (P.W.9) are real brothers while the complainant also happens to be husband of sister of the deceased as such they were closely related to her but at the same time it has been the consistent view of the superior courts of the country that mere close relationship of the prosecution witness with deceased or the complainant could not discard his testimony if otherwise the same is trust worthy, appealing to reason and corroborated by any independent circumstance. Respectful reliance in this regard is placed on the ratio ratio decidendi of august Supreme Court of Pakistan in the cases of Ijaz Ahmad v. The State (2009 SCM R 99) and Talib Hussain and others v. The State and others (2009 SCM R 825).
16. The defence version set forth by the appellant in his statement recorded under section 342, Cr.P.C. Qua his giving loan to the complainant and demanding its back cannot be given any weight firstly for the reason that it was not the first version of the appellant and secondly the appellant did not opt to substantiate his version through leading corroborative evidence in his defence although he had opportunity to appear as his witness in terms of section 340(2), Cr.P.C., but this opportunity was not availed for the reasons best known to the appellant. Hence, at the most the defence advanced by the appellant can only be termed as an afterthought story.
17. There is no denial to the fact that prosecution version of the occular account finds full support from the medical evidence available on record. As per statement of Dr. Waqar Ahmed (P.W.8), who medically examined Mst. Naseem Akhtar in an injured condition the duration of injuries fully coincides with the time of occurrence disclosed in the contents of the crime report. Moreover, while appearing in the witness box Dr. Farhat Naveed, Woman Medical Officer (P.W.6), who had conducted post mortem examination observed as many as fifteen injuries on the person of the deceased mostly on the vital parts of body and as per opinion of the doctor the death had occurred due to massive blood loss oozed from the wounds ascribed to the appellant.
18. During the course of investigation blood-stained hatchet was recovered on the plainting out of the appellant, which was sent to the office of Chemical Examiner/Serologist and as per reports (Exh.PR and Exh.PS respectively) the same was stained with human blood. Similarly blood-stained earth collected by the Investigating Officer at the time of spot inspection was also sent to the quarter concerned and respective reports of Chemical Examiner (Exh.PQ) and Serologist (Exh.PT) straightway support the prosecution case,
19. As far as motive in this case is concerned, nevertheless in ordinary cases once any motive is set forth in the crime report the prosecution is under bounden duty to prove the same but at the same time if otherwise the case of the prosecution is proved from direct evidence of ocular account finding full corroboration from medical evidence and other independent/attending circumstances, the conviction can be recorded. Respectful reliance in this regard is placed on the ratio decidendi laid down by the Hon'ble Supreme Court of Pakistan in the case Musa v. The State (2008 SCM R 997); wherein their Lordships in the august Supreme Court of Pakistan have held as under:-- ----Reappraisal of evidence----Absence of motive----Not a mitigating circumstance----Motive, proved or otherwise, is immaterial in presence of ocular evidence and murder may be committed even for no motive or on a minor pretext; what to speak of proving motive, in certain cases where the motive was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken as a mitigating circumstance".
' In the case of Raza Khan v. The State (1998 PCr.LJ 530), it has been held:- "---Motive---Inadequancy or weakness of motive would not lend any support to the accused when direct ocular evidence is available in the case".
' Similarly in the case of Muhammad Asif alias Assa v. The State (2009 YLR 498 it has been held:-- ' Evidence----Motive----Motive is the state of mind of an accused which can be formed even at the spur of moment----Mere lack of proof, non-proof or even absence of motive in a ease is of no consequence, as it is only supporting evidence".
20. We also find much weight in the contention of learned Law Officer, that the complainant was closely related to the deceased and was having no or previous enmity to have substituted the appellant in place of real culprits especially when the appellant happens to be spouse of the deceased lady. Moreover, had there been any substitution the real brother of the deceased, who being a government servant was not present at the place of occurrence at the relevant time, ought to have come forward for the rescue of the appellant/behnvai. Fact also remains that during the course of investigation the accusations levelled against the appellant in the crime report were found correct and his name was placed in Column No,3 of the report prepared under section 173, Cr.P.C.
21. No doubt the hatchet was not as lethal as any fire-arm, however, the number, as well as, locale/seat of injuries imprints the intent of the assailant, who by inflicting numerous injuries on the person of deceased; thereby committing murder of a. Young female without her fault, put the world of a young girl (daughter of the deceased) to a dark end. The normal sentence for culpable homicide amounting to murder is sentence of death. The prosecution witnesses were not tested on the touchstone of Tazkia-tul-shahood, therefore, the learned trial Court was justified to convict the appellant under section 302(b), P.P.C., and sentence to death as Ta'zir.
22. Upshot of the above discussion is that the prosecution has substantiated its case through leading evidence by the most H natural witnesses of the occurrence, who remained coherent on salient features of the prosecution version. The medical evidence fully substantiates the prosecution case especially the locale of injuries and time between death and postmortem examination. Recovery of blood-stained hatchet and positive reports of Chemical Examiner/Serologist in respect thereof fully establish the prosecution case and there is nothing on record to show even a glimpse in order to arrive at the conclusion that it was a case of substitution.
Hence, by any stretch of imagination, the prosecution case is fully proved beyond iota of reasonable doubt and we are constrained to observe that the learned trial Court was well-justified in passing conviction against the H appellant and sentencing him to death. Resultantly, Criminal Appeal No,36 of 2010 filed by Muhammad Safdar appellant is DISMISSED IN TOTO as a consequence whereof, the impugned judgment passed by learned trial Court on 20-1-2010 is maintained/upheld.
23. Murder Reference No,8 of 2010 forwarded by the learned trial Court in terms of section 374, Cr ,P.0 , for confirmation of sentence of death inflicted upon Muhammad Safdar/convict succeeds, which is answered in AFFIRMATIVE. Death sentence is CONFIRMED.